David Hudson at the ABA Journal covers the two recent wins in Florida: Searcy v. The Florida Bar and Rubenstein v. The Florida Bar.
Clay Calvert, a First Amendment scholar at the University of Florida, says that “Searcy is a great example of applying Central Hudson with teeth. Judge Hinkle demanded proof, not suspect speculation or convenient conjecture, that the public will be misled by representations of expertise and specialization. Frankly, the term board-certified used by the Florida Bar seems far more appropriate for the medical professional than the legal one. The Searcy law firm does specialize in the areas it claimed, regardless of whether it was board-certified,” Calvert says.
In Searcy v. The Florida Bar, the Northern District of Florida held that the Florida Bar violated the First Amendment when it prohibited the law firm Searcy Denney Scarola Barnhart & Shipley from advertising its specialization and expertise in mass torts and other areas of law. This is our third First Amendment victory against Florida’s lawyer-advertising rules.
David Hudson at the ABA Journal covers the victory in Rubenstein v. The Florida Bar.
The case reflects the Florida Bar’s long-standing ambivalence toward lawyer advertising, which the U.S. Supreme Court held in its 1977 ruling in Bates v. State Bar of Arizona to be commercial speech entitled to protection under the First Amendment. Since then, Florida has maintained one of the strictest regimes for regulating lawyer advertising of any state in the country. In recent years, for instance, Florida was the only state with an outright prohibition against lawyers including information about past results in their advertising. Other states generally followed the lead of the ABA Model Rules of Professional Conduct, which impose no blanket restrictions on references to past results, although six states (Missouri, New Mexico, New York, South Dakota, Texas and Virginia) require references to past results to be accompanied by a disclaimer.
In Rubenstein v. The Florida Bar, the Southern District of Florida declared unconstitutional guidelines issued by the Florida Bar’s Board of Governors, which prohibited advertising of a lawyer’s past results on television, radio, and billboards.
Order denying the Florida Bar’s motion for summary judgment | Order granting summary judgment to Rubenstein Law
On the Media‘s Bob Garfield explores lawyer advertising and its regulation:
Greg Beck: The ad is just the first contact between the lawyer and a potential client and a lawyer has no incentive to bring a case that cannot win. … [T]he next thing that happens is … the client contacts the lawyer and the lawyer evaluates the strength of the claim. If the lawyer at that point decides that the potential client has no case, then there’s been no harm done.
The Wall Street Journal‘s Nathan Koppel writes:
Syracuse, N.Y., attorney James Alexander ran a TV spot for his firm showing lawyers offering counsel to space aliens who had crashed their UFO. He also did one with lawyers towering like giants over Syracuse.
Not amused, New York court officials said the ads contained “patent falsities.”
“It cannot be denied,” wrote assistant New York Attorney General Patrick MacRae in a court filing, “that there is little likelihood that [the lawyers] were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.”